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The Border Wall Can Be Privately

But, The Border Wall Cannot Be Built By
A Private Company.
A comparative analysis of attempts to privately build the border wall,
and a viable alternative from the American Border Foundation for
those that wish to privately donate.

This report was commissioned by the American Border Foundation.
Promising the infeasible:

The construction of a private border wall on the southern border of the United States presents
insurmountable challenges. The reality is that only the federal government is equipped with the
means to see the project through from start to finish since, in many respects, these
insurmountable challenges are a product of federal regulations and international treaties.

Only the government can enforce immigration policy, gain waivers for environmental concerns,
coordinate with Customs and Border Protection, detain illegal immigrants, maintain and repair
border structures, build with certain materials, utilize eminent domain, properly handle disputes
concerning liability and—most importantly—deal with the existing bilateral treaty that serves to
settle border disputes with Mexico.

We Build The Wall Inc.’s dream of a privately built wall crumbles before most of these obstacles
but it vanishes with the last one. It’s hard to believe that he hasn’t discovered this issue already
but if this major governing treaty somehow slipped past his notice, that’s a major lapse in
attention to detail.

For those that have donated to We Build The Wall Inc.’s campaign for the wall, these preceding
sentences will be uncomfortable and those unwilling to see past their hopes and bias might
choose to reject them without further consideration. That would be a grave error. Unfortunately,
the dismissal of facts won’t change their impact, and the continued blind faith in a project that
will never achieve the promises it has made will do more demoralizing harm than good.

This reality hasn’t stopped We Build The Wall Inc. from claiming that they have cracked the
code and discovered a solution to the border wall dilemma—in a mere two weeks. But his
boasts have stepped far beyond the line drawn between ‘the unlikely’ and ‘the dishonest’ in
recent days and it is hard to believe he doesn’t realize this himself. These soon to be broken
promises have only grown more bold with each passing day, as We Build The Wall Inc.
continues to tweet ever-more unlikely pledges.

It is in the interest of the American people to understand fully that what We Build The Wall Inc. is
promising is simply not true, that the money that has been collected will never result in the
border wall he proposes, and that the American Border Foundation has provided American
citizens with a viable alternative. The Foundation has been working tirelessly to coordinate with
the Department of Homeland Security and has established a proven route to transfer money
directly to the Department so that it can proceed with the construction as ordered by the
President of the United States.

This report summarizes the various misapprehensions by the operation led by We Build The
Wall Inc. by breaking down the obstacles so that all readers may understand the issues that
accompany the effort. Most significantly, it will explain that, contrary to the claims made by We

This report was commissioned by the American Border Foundation.
Build The Wall Inc., there is a method already available to transfer private funds directly to the
Department of Homeland Security specifically for the construction of a wall.

The American Border Foundation’s viable alternative

Contrary to We Build The Wall’s (and the media’s) claim that the federal government is unable
to receive money from private donors, there are currently a number of government departments
that can receive donations from private individuals. The common misconception is that
individuals can only donate to the U.S. Treasury’s general fund. This is not true.

The Department of Homeland Security is among the departments that can receive private
donations. DHS Directive Number 112-02 lays out the guidelines for these private donations.

Donors are able to designate the purpose that their donations may be used for.

The American Border Foundation has already made contact with the Department of Homeland
Security and with the support of multiple sheriffs throughout the country, has already contracted
with the department to send their first check:

Therefore, it’s specifically legal and acceptable to deliver gifts to the DHS that “aid or
facilitate DHS’s work”, and our condition that the funds be used for construction of a
border barrier are acceptable because “the conditions do not unduly restrict or interfere
with the work of DHS and do not attach conditions inconsistent with applicable laws or

The ‘1970 Treaty’ with Mexico

In 1970, President Nixon signed a treaty with Mexico that once and for all settled the boundary
disputes between the United States and its southern neighbor. This treaty was ratified by the
Senate and codified into U.S. law. The chief concern of the treaty consisted of the two major
rivers that form the boundary between the two nations and provide critical fresh water resources
to farmers on both sides of the border.

The smaller of the two boundaries is the Colorado River boundary that has a 24 mile stretch that
runs between Arizona and the Mexican state of Baja California. The larger river boundary is the
Rio Grande (which Mexicans refer to as the Rio Bravo).

Among the major stipulations of the treaty are two main goals: that the water of the border rivers
continue to supply farmers on both sides of the border and that the rivers themselves are not
impacted in a manner that will alter the course of either river or result in flooding that causes
unnatural damage on either side of the border.

This report was commissioned by the American Border Foundation.
The Rio Grande river system’s watershed is vast—the river and its tributaries drain a land area
of 182,200 square miles in the region highlighted in the figure below.

In order to ensure that the treaty was abided by both parties, a bilateral commission known as
the International Boundary and Water Commission (IBWC) was tasked with regulatory oversight
along both rivers and their floodplains. The commission has the final word on whether
construction projects, such as walls, will be allowed or not. This is largely why construction in
Arizona, New Mexico, and California has been relatively simple for the federal government, but
the construction in Texas has been comparatively costly and difficult.

This report was commissioned by the American Border Foundation.
In order for We Build The Wall Inc. to build a private wall, they would have to abide by the
rigorous demands put forth by the commission. First, an all-concrete wall would be ruled out.
Floodwaters that are produced by the Rio Grande would need to be able to pass through and
under the barriers that are built if they are to be built between the levees and the river. Below,
an example of fencing constructed in compliance with the regulations of the IBWC can be seen.
It is located on the border between El Paso, Texas and the Mexican city of Juarez. The middle
portion of the fence includes a series of gates that can be raised to allow for flood water and
debris to pass underneath. Beyond the gate is a canal and levee system to deal with overflow.

In 2008, the United States and Mexico witnessed what a poorly constructed barrier along a river
can result in. The twin border cities of Nogales, Arizona and Nogales, Mexico were met with
catastrophic flooding, sinkholes, and property damage. The analysis that followed determined

This report was commissioned by the American Border Foundation.
the cause: the concrete foundation used in the border fencing did not meet the standards of the
IBWC. Blocking the natural drainage, water seeped into the streets of the two cities in an
unprecedented flood.

The IBWC exists to prevent these disasters from taking place.

The general criteria and regulations imposed by the IBWC are stringent and will prove to be an
inflexible barrier for the We Build The Wall team.

In addition, approval must be received from the US-IBWC prior to commencement

of construction of any facility which passes over, under, or within the floodplain of the
international reaches of the Rio Grande and Colorado Rivers.

To obtain a License/Permit from the Us-IBWC, the Sponsor or Owner (hereafter referred
to as Sponsor) of the proposed project shall comply with the National Environmental
Policy Act (P.L. 91-190, as amended), the Endangered Species Act (P.L. 93-205, as
amended), the National Historic Preservation Act (P.L. 89-665, as amended),' the
Clean Water Act (Federal Water Pollution Control Act)(P.L. 92-500, P.L. 93-243, and
P.L. 95-217; 33 U.S.C. Sec. 1251, et seq.), the Clean Air Act (42 U.S.C.A. 7401 et
seq.) and the US-IBWC implementing procedures published in the Federal Register.

In addition to other requirements set forth in this document, the Sponsor must submit to
the US-IBWC all necessary permits, environmental studies and documents as required
by the above U.S. agencies ensuring adherence to all environmental laws and
regulations for work within a floodway.

The US-IBWC requires coordination with several agencies in the approval of proposed
works along the international boundary with Mexico, including but not limited to the
United States Fish and Wildlife Service, United States Environmental Protection Agency,
United States Army Corps of Engineers, and the appropriate State Historical
Commissions. The US-IBWC will also coordinate with the Mexican Section of the IBWC
when required or is appropriate.

To summarize, if We Build The Wall Inc. wants to build a border wall in its truest sense—
meaning a wall that is actually on the border—they will have to somehow convince the IBWC
that a 30-foot concrete wall will in no way impede the flow of water.

Alternatively, if We Build The Wall aims to build a wall that isn’t a border wall, they could do so
far away from the actual U.S.-Mexico border. That wouldn’t be a border wall, of course, and it

This report was commissioned by the American Border Foundation.
wouldn’t serve any meaningful purpose. They’d face lawsuits from neighbors as well as from
those they isolate on the Mexican-facing side of the wall—assuming they would manage to
comply with the various regulatory acts bolded in the above excerpt. This would be unlikely for a
private organization to achieve, but the Federal government is able to obtain waivers for most of
these provisions.

While the government has managed to achieve victory in the courts over environment concerns
related to the construction of the border fence, We Build The Wall wouldn’t be able to rely on the
Department of Homeland Security’s ability to waive regulations.

Complicating matters further, the IBWC is particularly hostile towards the construction of
structures that will impact flooding and the natural drainage of the Rio Grande watershed. Their
regulations regarding fencing are strict and it goes without saying that We Build The Wall’s 30-
foot concrete wall would be dead on arrival:

Fences within the floodplain of a river or floodway channel are not recommended where
avoidable. During high flood stages, floating debris may pile up on a fence line and
consequently raise flood stages. However, the installation of chain link fences may
be allowed if they are designed to collapse during high flood stages or if they can
be removed within a twenty-four hour period. In addition, four strand barbed wire
fencing is authorized with posts no larger than four ( 4 ") inches in diameter, spaced no
closer than twelve (12) feet apart and the wire shall be attached to the downstream side
of the posts. The sponsor shall submit plans and design calculations to assure
compliance with the above criteria. No fencing shall be placed on the levee slopes or
roadway that is running parallel to the levee itself. All fencing placed parallel to the levee
shall be a minimum distance of fifteen (15) feet from the toe of the levee. No fencing
shall be placed inside or across a pilot channel.

From Presidio county to Hidalgo county and everywhere else along the Rio Grande border,
flooding is a major part of life. In Maverick county, one rancher that is particularly concerned
with drug smuggling and human trafficking had this to say:

Short of building a concrete dam several miles long, Cunningham doesn’t believe the
federal government can commission a wall that will withstand the pressure of that much
water along his property line. During those massive floods, such a wall would just wash
away, he believes.

To avoid that problem, the feds could simply build the wall outside the floodplain. But
that would require the government to take most of Cunningham’s ranch, not to mention
property from farming and ranching neighbors. Such a solution would drive up the cost

This report was commissioned by the American Border Foundation.
of property acquisition and would place hundreds of acres of South Texas property on
the Mexican side of the wall.

While Cunningham is correct that a typical wall would not be able to withstand such pressure,
the IBWC and CBP have worked together to develop walls that would work—they’re just not the
type of wall that We Build The Wall Inc. say they will build.

Customs and Border Protection requires far more than We Build The Wall is offering

The private construction of a border wall also poses other problems for federal agents. The
plans they implement in their own border projects are sophisticated and mindful of the
challenges they face.

When constructing border walls, vehicle barriers, and pedestrian fencing, they don't just build
the structure. The wall must be accompanied by a trail that runs parallel to it so that Border
Patrol agents can access, survey, monitor, and respond to any threats.

That requires the removal or placement of hundreds of thousands of cubic meters of soil which
adds to the cost of the project while even further diminishing the likelihood of the project being
approved. We Build The Wall Inc. could ignore this aspect, and indeed it probably has, but that
doesn't assist Border Patrol in its mission.

It goes without saying that border security needs to be something that the federal agencies
tasked with protecting the border are on board with. Rather than working with the government, it
is far more likely that We Build The Wall’s plan would actually impede their efforts to execute
their objectives.

The liability for anyone with a private border wall on their property

Whether someone agrees with the court rulings or not, the fact remains that illegal immigrants
have every right to file civil suits against American citizens. The assistant county attorney for
Maverick County, Felipe Hernandez, noted that private organizations, unlike the federal
government, would be forbidden from using certain materials such as concertina razor wire.


The concept of a private organization rallying Americans to such and admirable cause is sure to
evoke feelings of patriotism and hope. The reality, as unfortunate as it may be, is that the
project proposed by We Build The Wall Inc. is infeasible. His claims of a 30-foot-tall concrete
wall at a mere fraction of the cost that the federal government would pay is, simply put,
preposterous. That is not to say that all hope is lost. The American Border Foundation has a
viable alternative for Americans that wish to privately fund the construction of a wall along the

This report was commissioned by the American Border Foundation.
southern border—a plan that involves coordination with the government that ultimately is the
institution that enforces immigration law, protects national security, and is tasked with upholding
the sovereignty of the United States. To learn more about their mission and plan, please visit

This report was commissioned by the American Border Foundation.